State v. Smith
|114 Mo. 406,21 S.W. 827
|STATE v. SMITH.
|28 February 1893
|United States State Supreme Court of Missouri
Appeal from criminal court, Jackson county; Henry P. White, Judge.
Thomas Smith, having been convicted of murder, appeals. Affirmed.
The other facts fully appear in the following statement by SHERWOOD, J.,
The defendant, a negro, indicted for the murder of one of his own race, George Cameron, by shooting him with a pistol, being put upon his trial, was found guilty of that offense in the first degree, and, judgment having been rendered on the verdict, and sentence passed upon him, he appeals to this court. The indictment is in due form, and the verdict complies with the law in specifying the degree of the crime of which the defendant was found guilty. No assignment of errors has been made, nor is there any brief of counsel filed on behalf of defendant, though time was granted by this court for that purpose; but it is the statutory duty of this court, even though no assignment of errors be made or brief filed in a criminal cause, to render judgment on the record before us. Rev. St. 1889, § 4297. Engaging in the performance of this statutory duty, we find many grounds stated in the motion for a new trial which will hereafter be discussed, or else noticed in a manner sufficient for the purposes of the present investigation. With this end in view, the record has been carefully read. As will presently appear, there is considerable conflict in the testimony. The defendant's version of the affair is in substance as follows. On cross-examination defendant said:
The testimony of the defendant sufficiently outlines and indicates the theory of the defense, which is that the scuffle over the gun arose out of the endeavor of George Cameron to wrest the gun from his brother in order to shoot Smith, and, having succeeded in getting possession of the gun, and being about to kill Smith with it, the latter shot George in self-defense; and so the conflict in the testimony turns in a large degree upon the point whether the scuffle over the gun between the two brothers had ceased when the defendant shot George.
Hogan, a state's witness, testifies that he came up after the scuffle about the gun was over; and he further testifies that his attention was attracted by loud talking in the back yard of the saloon, — a locality fenced in by a light board fence, 4½ feet high; that, arriving there, he saw George and Jim Cameron and Smith, who were the only parties present. At that juncture Jim Cameron was standing still, with his hand holding the shotgun at "order arms;" that is, with the butt resting on the ground. George was standing still also, about four feet from Smith, with his right hand up and his left hand down. Hogan saw no weapon in his hand, and, as Hogan came within hearing, George said: "Smith, you know you done me wrong," whereupon Smith just pulled his pistol down, and shot him, saying, "Take that," and then ran.
Jackson, another state's witness, testifies that the scuffle between the brothers over the gun after Jim brought it out of the saloon was entirely in play. ...
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